Does West Virginia’s Medical Malpractice Law Apply If You Weren’t Physically Injured?

Elaine Neidig paid $1,626 for three mammograms at a Virginia hospital. Nobody missed a tumor. She never claimed a doctor hurt her, and she never asked for a dollar of compensation for pain or anxiety. She asked for her money back, on the theory that the hospital had sold her a screening it could not deliver.

The hospital’s answer was that she had sued too late — not under any consumer statute, but under the West Virginia Medical Professional Liability Act, the malpractice law, with its two-year clock. A federal judge agreed and threw the case out.

On June 10, 2025, the Supreme Court of Appeals of West Virginia held that the malpractice statute never applied in the first place. The MPLA does not govern a suit against a health care provider when the plaintiff seeks only economic damages and disclaims any claim of physical injury, emotional injury, or death. Powell & Majestro P.L.L.C. argued the case for Ms. Neidig, and the holding now shapes every consumer claim brought against a health care provider in this state.

What Did the West Virginia Supreme Court Hold in Neidig v. Valley Health System?

The Court held that the Medical Professional Liability Act does not apply to a suit against a health care provider or health care facility when the plaintiff claims only economic damages and disclaims all liability based on physical injury, emotional injury, or death. That language is Syllabus Point 6 of the opinion, which makes it binding law rather than commentary.

Chief Justice Wooton wrote for the Court. Justice Walker concurred separately, Justice Armstead dissented, and Justice Trump was disqualified, with Judge Perri Jo DeChristopher sitting by temporary assignment.

The reasoning starts with a definition. The MPLA reaches claims for “medical professional liability,” which W. Va. Code § 55-7B-2(i) describes as liability for damages resulting from the death or injury of a person, for any tort or breach of contract based on health care services. The Court read “death or injury of a person” as a threshold requirement governing both tort claims and contract claims, not tort claims alone.

Valley Health argued for a different reading of that sentence, one applying the injury requirement to torts while leaving breach of contract claims covered regardless. The Court declined, noting that the interpretation would require inserting a word and a comma the Legislature never wrote.

Two structural observations carried real weight. The MPLA sets no limitations period for a claim built solely on economic loss, which suggests the Legislature never contemplated one. And the Act’s screening certificate of merit (a sworn statement from a qualified physician) serves no rational purpose in a case where no one alleges a medical injury for a physician to evaluate.

What Went Wrong at Winchester Medical Center?

Federal accreditation inspectors found in July 2019 that staff at Winchester Medical Center were not accurately positioning or compressing patients during mammograms, producing images the FDA determined carried serious quality deficiencies amounting to a serious risk to human health.

The equipment was not the problem. Valley Health’s chief executive said publicly that the machines were working properly during the period the substandard images were produced. The failure was in technique — how patients were positioned and compressed, which determines whether a radiologist can see what a mammogram exists to reveal.

The scale was substantial. The hospital’s Diagnostic Center had been producing roughly 550 mammograms a week, and it mailed approximately 25,000 certified letters telling patients how to proceed. Mammography stopped on August 31, 2019, and did not resume for nearly six months.

Ms. Neidig’s notification letter is dated December 16, 2019. It covered exams performed between June 20, 2017 and August 31, 2019 and set out recommended steps that varied depending on when a patient had last been screened. The facility’s accreditation has since been reinstated.

Valley Health never reimbursed her. She had paid $555.00 in March 2016, $567.00 in December 2017, and $504.00 in June 2019, at a system that advertised the most advanced mammogram technology across all six of its hospital imaging locations.

Why Did This Case Reach the Supreme Court of Appeals?

It arrived sideways, on a certified question from a federal appeals court that could not resolve an unsettled point of West Virginia law on its own.

Ms. Neidig filed her putative class action in the Circuit Court of Jefferson County on August 3, 2022. Valley Health removed it to the United States District Court for the Northern District of West Virginia and moved to dismiss, arguing she had missed both the MPLA’s pre-suit notice requirements and its two-year deadline.

The district court agreed. Relying on the second sentence of the statutory definition — language sweeping in claims contemporaneous to or related to a health care tort — it held the claims fell inside the Act and dismissed them as untimely.

She appealed. The Fourth Circuit found the question genuinely open under state law and, in a January 2024 order reported at 90 F.4th 300, asked the Supreme Court of Appeals of West Virginia to answer it: whether a plaintiff’s claims can fall under the MPLA if the plaintiff disclaims any form of physical or emotional injury.

West Virginia’s high court accepted the question in August 2024, reformulated it to track the statute’s own language, heard argument in February 2025, and answered in June. The answer was no.

What Separates a Malpractice Claim from a Consumer Claim in West Virginia?

A malpractice claim requires that someone was hurt or died. A consumer claim asks whether a business sold something other than what it promised. The same facts can resemble both, and which label attaches changes nearly everything about how the case proceeds.

Two conditions must be satisfied before the MPLA applies at all: the defendant must be a health care provider or facility, and the claim must be one for medical professional liability as the Act defines it. Both, not either. That framework comes from State ex rel. West Virginia Division of Corrections & Rehabilitation v. Ferguson, decided in 2023.

Neidig turned on the second condition. West Virginia courts sort MPLA claims into anchor claims and ancillary claims, a distinction drawn in State ex rel. West Virginia University Hospitals v. Scott in 2021. Ancillary claims are pulled into the Act only when they attach to a valid anchor claim. Without an anchor, there is nothing for them to attach to.

The practical stakes are concrete:

• Under the MPLA: two years to file, pre-suit notice, a screening certificate of merit sworn by a qualified physician, and statutory caps on noneconomic damages.
• Under the WVCCPA: four years to file, no certificate of merit, statutory damages per violation, and attorney’s fees and costs shifted onto a defendant that violates the Act.

A patient who paid a few hundred dollars for a defective service cannot realistically retain a physician to swear out a certificate of merit and then litigate for years to recover it. Under the hospital’s reading of the statute, that claim would simply disappear.

Why This Decision Reaches Beyond Mammograms

The holding applies to any claim against a hospital or provider where the alleged harm is financial rather than physical.

Health systems are large commercial enterprises. They advertise, set prices, send bills, and compete on the quality of what they sell. When a dispute concerns those activities rather than a clinical outcome, the patient is acting as a consumer, and West Virginia’s consumer statute is the natural fit.

Before Neidig, providers had a structural argument that any claim touching health care belonged inside the malpractice statute, where shorter deadlines and procedural prerequisites do much of the defensive work. That argument is now foreclosed where a plaintiff seeks only economic damages.

The Court was careful about its own limits. It did not hold that every claim must rest on bodily injury — only that the Act cannot apply when no claim does. It also observed that a plaintiff who adds a missed-diagnosis or emotional distress claim alongside a contract claim presents a different question entirely.

Justice Armstead disagreed, and his objection deserves a fair hearing. In his view, the claims all depend on proving a deviation from the accepted standard of care for a mammogram, meaning the plaintiff will have to establish medical negligence to win regardless of how the damages are labeled. He read the majority as permitting plaintiffs to sidestep the Act through pleading — an outcome he believed the Court had rejected in earlier cases.

What Can Patients Recover in a Case Like This?

Recovery centers on economic loss — money paid for a service that did not meet the standard it was sold under; along with statutory damages, disgorgement of profits, and the cost of litigation.

The demand in this case covers actual damages; statutory damages under W. Va. Code §§ 46A-6-106 and 46A-5-101; costs of litigation including attorney’s fees under §§ 46A-5-104 and 46A-5-106; compensatory damages for the depreciated value of the mammograms; disgorgement of wrongfully obtained profits; and contract damages.

Individually, these figures are small. Three exams came to $1,626. Few attorneys can take a case that size on its own, which is precisely why class treatment matters — it is often the only mechanism that makes a claim of this magnitude worth pursuing.

Fee shifting does similar work. Because the WVCCPA moves attorney’s fees onto a defendant found to have violated it, a patient does not have to weigh the cost of counsel against a few hundred dollars in disputed billing.

How Long Do West Virginia Patients Have to File?

Consumer protection claims carry a four-year limitations period, measured from the date the violation occurred.

2015. Va. Code § 46A-5-101 sets that period for actions filed on or after September 1, 2015. Before Neidig, a provider could argue the MPLA’s two-year deadline displaced it, the argument that got this case dismissed the first time around. It no longer works where the plaintiff claims only economic loss.

One procedural step is easy to overlook. The WVCCPA allows a consumer to serve a Notice of Right to Cure under W. Va. Code § 46A-5-108, giving the business a chance to make things right before suit is filed. Ms. Neidig served hers. Valley Health responded on October 5, 2020, denying responsibility.

Breach of contract claims run on their own clocks: ten years for a written contract under W. Va. Code § 55-2-6, five years for an oral one.

Why Eastern Panhandle Patients Cross State Lines — and Why West Virginia Law Still Applied

Valley Health advertised into West Virginia, and that marketing is what allowed a Jefferson County resident to hold a Virginia hospital to West Virginia consumer law.

Geography drives health care in the Eastern Panhandle. From Charles Town, Ranson, Shepherdstown, or Harpers Ferry, Winchester is a shorter drive than most of West Virginia. Residents of Jefferson, Berkeley, and Morgan counties routinely cross into Virginia or Maryland for hospital care, and the systems on the other side of the line understand that perfectly well.

Valley Health is a not-for-profit system headquartered in Winchester that describes its service area as the Northern Shenandoah Valley of Virginia together with the Eastern Panhandle and Potomac Highlands of West Virginia. Two of its six hospitals sit in this state: War Memorial Hospital in Berkeley Springs and Hampshire Memorial Hospital in Romney.

That reach is the legal hinge. The complaint alleges Ms. Neidig chose Winchester Medical Center because of Valley Health’s advertising into West Virginia, and that the system regularly solicits West Virginia patients to use its facilities across the line. A company that markets into a state can be answerable under that state’s consumer laws.

Patients weighing in-state options have them. WVU Medicine operates Berkeley Medical Center in Martinsburg and Jefferson Medical Center in Ranson.

Frequently Asked Questions (FAQs)

Do I have to prove a doctor made a mistake to bring a consumer claim against a hospital?

No. A consumer claim under the WVCCPA asks whether the provider represented that a service carried a quality, standard, or certification it did not actually have. That is a question about what was advertised and sold, not about clinical judgment.

What if I was actually harmed — a delayed diagnosis, for example?

That is a different case, and Neidig does not govern it. A claim involving physical injury from substandard care falls under the Medical Professional Liability Act, with its own deadlines and pre-suit requirements. Anyone in that position should have their situation reviewed individually and promptly, because the MPLA clock is shorter.

Does this decision apply to health care other than imaging?

The holding is not limited by service type. It turns on the kind of damages claimed, not the kind of care delivered.

I live in West Virginia but was treated in Virginia or Maryland. Which state’s law applies?

It depends on the facts, including whether the provider marketed into West Virginia and where the transaction took place. In this case, allegations that Valley Health advertised into West Virginia and solicited West Virginia patients supported applying West Virginia consumer law to care delivered in Winchester.

Is a few hundred dollars really worth pursuing?

Individually, rarely. That is what class actions and fee-shifting statutes exist to solve. The WVCCPA provides statutory damages per violation and shifts attorney’s fees to a violating defendant, which changes the arithmetic for small-dollar claims.

Is the case over?

The Supreme Court of Appeals answered the legal question about the MPLA’s scope. The underlying class action continues in federal court, where the question of class certification remains to be resolved.

 

Talk With a West Virginia Consumer Class Action Attorney

Powell & Majestro P.L.L.C. represented Elaine Neidig and argued her case before the Supreme Court of Appeals of West Virginia. The firm has litigated consumer class actions in West Virginia and nationally for more than two decades, frequently as co-counsel and on referral from attorneys whose practices do not handle complex class litigation.

If you paid a health care provider for a service that did not meet the standard it was advertised under — or if you are an attorney evaluating a claim a provider will try to force into the malpractice statute — we can review the situation at no cost.

Call (304) 346-2889 or reach us through our online contact form. We work on a contingency fee basis, and there are no fees unless we recover on your behalf.